1711173 (Migration)

[2019] AATA 4213

1711173 (Migration) [2019] AATA 4213 (16 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711173

MEMBER:Justin Owen

DATE:16 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 16 August 2019 at 10:54am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor is under 18 years of age – applicant is providing significant care and support to her children – medical evidence of sponsor’s disabilities accepted – applicant failed to meet the primary criteria – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 5F, 65

Migration Regulations 1994 (Cth), rr 1.03, 1.15; Schedule 2, cls 835.212, 836.213, 838.212

Social Security Act 1991 (Cth)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 May 2017 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 October 2016. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.213. Clause 836.213 requires that at the time of application the application, the applicant is sponsored by the Australian relative, if the Australian relative has turned 18; is a settled Australian citizen, a settled Australian permanent resident ore a settled eligible New Zealand citizen; and is usually resident in Australia.

3. The delegate refused to grant the visa on the basis that cl.836.213 was not met because the delegate found the sponsor of the applicant, her son [Mr A], was born on [date].  The delegate obtained this information from departmental systems that showed the applicant was recorded as the mother of the sponsor in his application for Australian Citizenship by Descent in 2013.  The delegate subsequently found that at the time the applicant’s application was lodged – 20 October 2016 – the sponsor had not at that time turned 18 years of age and subsequently did not meet the requirements of subregulation 836.213(a)(i).  Consequently, the delegate found the applicant did not satisfy clause 836.213 of the Regulations.        

4. The applicant appeared before the Tribunal on 9 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal notes that the applicant provided it with a copy of the delegate’s decision record.  The issue in the present case is whether at the time of application the criterion concerning sponsorship was met.

   Are the sponsorship requirements met?

8. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act).

9. The applicant in oral evidence stated her son’s date of birth was [date].  The applicant confirmed in oral evidence was the sponsor of her Carer visa application.  The applicant confirmed in oral evidence the sponsor was [age] years of age when he sponsored the applicant’s visa application. 

10. The Tribunal asked the applicant if she was aware of cl.836.213 that requires when an applicant is sponsored by an Australian relative, that they have turned 18 years of age.  The applicant confirmed she was aware that the sponsor was required to be 18 years of age. 

11. The applicant claims she is living with the sponsor and the sponsor’s [sister].  She came to Australia on a [temporary] visa [in] February 2016.  At the hearing she confirmed that when she came to Australia on a temporary [visa] she intended to stay permanently with her two children.  She said she had been living with the children in China.  The applicant claimed Australian Embassy staff had told her that to apply for a Carer visa could not be applied for offshore and could only be applied for in Australia.  She said she therefore applied for a [temporary] visa in order to lodge the application on shore.  The applicant said she was not aware Carer visas could be applied for offshore.  The applicant also said that she needed to have a medical certificate concerning the sponsor’s needs issued in Australia because a Chinese certificate would also not be recognised.  The applicant told the Tribunal that the children were Australian citizens and did not have access to a range of Chinese medical care. 

12. The applicant stated that she had bought a property in [Suburb 1] close to the school attended by the sponsor and his [sister].  There is no mortgage on the property.

13. The applicant spent a considerable period of time outlining to the Tribunal the various health challenges facing the sponsor [Mr A]and the care she provides.  The sponsor [at] the time of the Tribunal’s decision [is] now [age] years old.  The Tribunal notes the considerable corroborative evidence as well as the detailed submission that has been provided by the applicant to the Tribunal concerning the sponsor’s health and medical needs (T1, Folio.48-56).  The sponsor has a permanent condition of severe intellectual disability with a wide range of care needs.  As outlined in the Carer Visa Assessment Certificate (D1, Folio. 72-79) the applicant has extreme functional impairment.  He has been formally tested with a functional IQ of 40.  He attends [a special developmental school].  He has a genetic [disorder].  He also has an Autism spectrum disorder.   The applicant claims she has no support from other family members in Australia in terms of caring for the sponsor.  The applicant states that the sponsor and her daughter, the sponsor’s [sister], are reliant upon her for their living and care needs.

14. The applicant claims the father of the applicant – who the sponsor acquired Australian Citizenship by Descent through – has only met the sponsor and his [sister] three times in total and all three times were at the Australian Consulate in Guangzhou whilst applying for Australian citizenship. 

15. The applicant said the sponsor was accessing speech pathology, occupational therapy, toilet training and some social time in the park via the NDIS which he commenced accessing in 2016 but was not accessing any support via Centrelink or any other external provider.   The applicant said that she is unable to work due to her visa status in Australia and is being financially supported by her parents in China. 

16. The applicant said her two children are very dependent upon her.  She stated the sponsor’s dependence on her was far greater than that which other children of his age had upon a parent.  She said if she has to return to China, her son will have to travel with her and he would not be able to access medical services in China.  The only family member that has provided support to the sponsor and his [sister] in Australia is the applicant’s mother who visited temporarily on a Visitor visa.  The applicant said her mother returned to China in October 2018 after the expiry of her Visitor visa. 

17. The Tribunal appreciates the challenges the applicant is facing in terms of caring for her children.  The Tribunal accepts the medical evidence that has been submitted concerning the sponsor’s disabilities and is prepared to accept the applicant – with support from the NDIS – is providing significant care and support to her children.   

18. The applicant said she understood that the sponsor did not meet the relevant criteria when the application was made.  She said she still made the application because the sponsor could not be separated from her.  She said that if she took him back to China he could not access medical services and he instead could access superior medical services in Australia.  The applicant asked the Tribunal to consider the compelling circumstances before it.  The Tribunal explained that it was still required to follow the relevant legislation and regulations.  The Tribunal explained to the applicant that she had available to her a number of options should the delegate’s decision be affirmed, including that of the Minister intervention under the Migration Act 1958 where the Minister may substitute the Tribunal’s decision with a decision that is more favourable to the applicant if there are compelling, compassionate or humanitarian considerations.

19. The applicant said she did not give birth to her children to gain permanent residency in Australia.  She said that after the sponsor’s father discovered their son was intellectually disabled he abandoned the children.  She stated she did not want to do the same to the sponsor.  She said she did not want to traumatise her children.  The applicant stated that she had had a good job and life in China.  Her motivation was about caring for her son the sponsor.  The applicant said her daughter (who was at the Tribunal) and her son the sponsor were very anxious about the situation and their fear the applicant would be deported from Australia. 

20. The Tribunal has a great degree of sympathy for the sponsor given his considerable need for assistance and support.  The Tribunal also has considerable sympathy for the sponsor’s [sister].  The Tribunal accepts that the [children] , who are both Australian citizens, are heavily reliant upon the applicant.  The Tribunal cannot waive the primary criteria for a Subclass 836 visa on the basis of compelling or compassionate circumstances.  The applicant can however, if she wishes, apply for Ministerial intervention and seek a more favourable decision on the basis of compelling, compassionate or humanitarian reasons.     

21. The Tribunal notes that the applicant has admitted that she entered Australia on a Visitor visa with the deliberate intention of remaining permanently to support her two children.  She has also conceded that she was aware that the visa subclass required the sponsor be over 18 years of age.  The Tribunal takes a particularly dim view of such a disregard for the laws and regulations governing Australia’s migration system.   The Tribunal found the applicant to be an articulate and intelligent witness.  In the Tribunal’s opinion she was aware she was in breach of the requirements for a Carer visa but entered Australia anyway on a temporary visa with requirements she had no intention of meeting.

22. The applicant has failed to meet the primary criteria for the grant of this visa.  At the time of application her sponsor was just [age] years old.  Therefore, at the time of application, the applicant was not sponsored as required by the legislation and does not satisfy cl.836.213.

23. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa.

24. The evidence before the Tribunal is that the applicant was born on [date].  The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.

25. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as the applicant’s near relatives, as defined in r.1.15(2), reside in the same country as the applicant.  Based on the applicant’s oral testimony, the applicant’s mother resides permanently offshore in China.  As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl.835.212.

26. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Justin Owen
    Senior Member